Shri.K.Ganesh Vs Shri Govind Reddy

SMT. CHANNAMMA DAUGHTER OF SHRI MUNIYAPPA, AGED 75 YEARS, RESIDENTS OF NO.329, VEERABHADRA NILAYA, 3^RD CROSS, KODIHALLI, AIRPORT ROAD, BANGALORE - 560 008

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MR KISHORE KUMAR SON OF SHRI SHANTHILAL, AGED 51 YEARS, RESIDING AT FLAT NO.102, 1^ST FLOOR, NO.432, 30^TH CROSS,

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7^TH 'B' MAIN,

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4^TH BLOCK, JAYANAGAR, BENGALURU – 560 011

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M/S METRIK INFRA PROJECTS PVT. LTD., A COMPANY REGISTERED AND INCORPORATED UNDER THE COMPANIES ACT-1956, HAVING ITS OFFICE AT NO. 111, 1^ST FLOOR,99/100, PRESTIGE TOWERS, RESIDENCY ROAD, BENGALURU-25, REPRESENTED BY ITS MANAGING DIRECTOR SRI. KISHORE KUMAR, S/O SHANTHILAL.

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…RESPONDENTS

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(BY SRI. H.SUNIL KUMAR, ADVOCATE FOR C/R1; SRI. PARASHURAM AJJAMPUR LAKSHMAN, ADVOCATE FOR R-25)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.17.09.2025 PASSED ON I.A.NO.1 IN O.S.NO. 4625/2025 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.6), ALLOWING THE I.A.NO. 1 FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by the appellants/defendant Nos.5 and 19 questioning the order dated 17.09.2025 passed on

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I.A.Nos.1 and 2 filed under Order XXXIX Rules 1 and 2 of CPC in O.S.No.4625/2025 on the file of XXIV Addl. City Civil and Sessions Judge, Bangalore City (CCH-6), thereby, by allowing I.A.No.1 restrained defendant Nos.1 to 27, their friends, agents, representatives, legal heirs, executors, administrators or anybody claiming through them from alienating or encumbering or creating third party rights in respect of schedule A, B and C properties and I.A.No.2 filed under Order XXXIX Rules 1 and 2 of CPC was dismissed.

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The plaintiffs have filed the suit for partition and praying to grant 1/4^th share and also for declaration to declare that the registered Joint Development Agreement dated 08.08.2013 is null and void and not binding on the shares of plaintiff No.1 and also prays to declare the

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registered partition deed dated 11.07.2018 and for rendition of accounts and for permanent injunction.

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The appellants filed I.A.Nos.1 and 2 for an order of temporary injunction. I.A.No.1 is allowed and I.A.No.2 is dismissed. The trial Court assigned the reasons that the suit is filed for partition and to protect the interest of the co-sharers and also the defendants have put up construction and are selling portion of the property and creating third party rights. Therefore, in order to avoid multiplicity of proceedings, hence, granted an order of temporary injunction against the defendants from making further alienation as the plaintiffs made out prima facie case and balance of convenience.

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Learned counsel for the appellants/defendant Nos.5 and 19 submitted that the suit filed itself is an abuse of process of Court for the reason that defendant No.25 has already filed the suit in O.S.No.2085/2021 for seeking the similar reliefs as prayed in the present suit

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and in that suit the plaintiffs were defendant Nos.25 and 27 and in that suit, defendant Nos.25 and 27 have filed the application under Order XXIII Rule 1-A read with Order I Rule 10 of CPC to transpose themselves as plaintiffs, but later on, the said suit was withdrawn. Since the plaintiffs in the said suit and defendant Nos.25 and 27 have not got the relief of an order of temporary injunction, therefore, after withdrawing the said suit filed the present suit by the plaintiffs. Hence, submitted that it is amounting to an abuse of process of Court. Though, the instant suit filed by defendant Nos.25 and 27 in O.S.No.2085/2021, but the plaintiffs in the said suit and defendant Nos.25 and 27 are having similar and common interests and therefore, when in the earlier suit they failed to get an order of temporary injunction and once again filing of the instant suit for the similar relief is nothing, but an abuse of process of Court.

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Further submitted that the present appeal is

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confined to only item No.8 and 9 of ‘A’ schedule properties

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and these properties are exclusive properties of M.Krishnappa and M.Channaraya Reddy who are fathers of defendant Nos.1 to 13 and defendant Nos.14 to 24 respectively. Further submitted that there is Joint Development Agreement on 08.08.2013 and defendant No.25 has filed the suit in O.S.No.2085/2021 in the year 2021 and that the instant suit is filed in the year 2025. Therefore, the suit filed by the plaintiffs is barred by limitation. Thus, it is not maintainable.

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Further submitted that in the said Joint Development Agreement dated 08.08.2013 the plaintiffs herein being the confirming parties have stated in the said Joint Development Agreement that these plaintiffs do not have right, title and interest whatsoever any portion of schedule ‘A’ and ‘B’ properties. Therefore, the plaintiffs are not the owners of the property, but only confirming parties. Further submitted that the plaintiffs have put signatures on the said Joint Development Agreement dated 08.08.2013 and placed reliance on the document

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i.e., Joint Development Agreement dated 08.08.2013 and therefore, by referring to various documents i.e., Joint Development Agreement dated 08.08.2013, plaint and interlocutory applications in O.S.No.2085/2021 has submitted that the suit filed by the plaintiffs is not maintainable and also barred by limitation as per Section 3 of the Limitation Act and Article 58 of the Limitation Act.

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Further submitted that the plaintiffs herein have

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obtained the suit item Nos.4 and 7 in ‘A’ schedule property and item Nos.2 and 3 in ‘B’ schedule property and those are valuable properties and hence, the plaintiffs do not have any right, title and interest over other properties, much particularly, on item Nos.8 and 9 of ‘A’ schedule property.

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Further submitted that the plaintiffs have not

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produced any document to show that the suit schedule properties are joint family properties. Therefore, on all these grounds, it is submitted that the trial Court has not considered these aspects and passed an order of

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temporary injunction. Therefore, prays to allow the appeal by setting aside the impugned order.

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Learned counsel for the appellants in support of

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his argument has relied on the following decisions:

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(i) MANDALI RANGANNA AND OTHERS VS. T.RAMACHANDRA AND OTHERS - (2008) 11 SCC 1

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(ii) VINOD SETH VS. DEVINDER BAJAJ AND ANOTHER – (2010) 8 SCC 1

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(iii) Y.B.PATIL AND OTHERS VS. Y.L.PATIL – (1976) 4 SCC 66

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On the other hand, learned counsel for the respondents submitted that the suit is filed for partition and separate possession and in order to protect the interest of the plaintiffs, the trial Court has rightly passed the order restraining them from alienation of ‘A’ and ‘B’ schedule properties and if the appellants and other defendants alienate the properties, then the plaintiffs and defendant No.25 will not get any share in the properties.

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Thus, it is amounting to causing deprivation of getting share in the properties.

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Further submitted that the earlier suit is filed by defendant No.25 who is the sister of defendant No.1Krishnappa and Channaraya Reddy, but the instant suit is filed by the plaintiffs. Therefore, the instant suit is not filed at the instance of defendant No.25 - Channamma (in OS.No.4625/2025). Therefore, when the plaintiffs are having inherent right to seek for partition in the suit properties, therefore, filing of the suit is maintainable. Therefore, submitted that to protect the interest of the plaintiffs and defendant No.25, the order of temporary injunction granted is justifiable.

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Further submitted that the plaintiffs does not have objection to sell the properties of other defendants’ share by reserving the share of the plaintiffs and defendant No.25, which protect the right and interest of the plaintiffs and defendant No.25. For this, it is submitted

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that they do not have any objection to alienate the share of other defendants by reserving the share of plaintiffs and defendant No.25. Therefore, prays to dismiss the appeal. In support of his argument, he places reliance on the

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judgment of the High Court of Delhi in the case of MRS.DEEPAK KAUR VS. S.HARI SIMRAN SINGH & OTHERS – CS (OS) 453/2017 DD.21.02.2019.

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Having heard the arguments of learned counsel for both the parties and perusing the materials on record, the following points arise for consideration:

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i. Whether, under the facts and circumstances involved in the case, defendant No.5 and defendant No.19 demonstrates that the plaintiffs have not made out prima facie case so as to grant an order of temporary injunction?

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ii. Whether, under the facts and circumstances involved in the case, defendant No.5 and defendant No.19 demonstrates that the plaintiffs do not have balance of convenience so as to grant an order of temporary injunction?

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iii. Whether, under the facts and circumstances involved in the case,

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defendant No.5 and defendant No.19 demonstrates that, if an order of temporary injunction is not granted, then the plaintiffs and defendant No.25 will not suffer any injury and loss?

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iv. Whether the order of the trial Court requires interference or not?

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The plaintiffs have filed the suit for partition and

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separate possession by pleading that all these suit properties are joint family properties. The appellants have produced the document of Joint Development Agreement dated 25.10.2007, on which also learned counsel for the respondents by placing reliance on that document, the plaintiffs are considered and recognized as joint owners of the suit schedule properties.

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When this being the fact, once again the appellants and defendants have made another Joint Development Agreement dated 08.08.2013, in which, the plaintiffs are shown only as confirming parties and both these Joint Development Agreements are between the same parties. In the first Joint Development Agreement

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dated 25.10.2007, the appellants and defendants have considered the plaintiffs as joint owners of suit schedule properties. The relationship between the parties in the suit is not disputed except the developers who are defendant Nos.26 and 27, but in the subsequent Joint Development Agreement dated 08.08.2013, the version has been changed that the plaintiffs and their family members are shown as confirming parties. Though, in the Joint Development Agreement dated 08.08.2013 there is recital

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saying that the plaintiffs does not have right, title or interest over the schedule ‘A’ and ‘B’ properties, but by such recital, the inherent right of the plaintiffs cannot be taken away. Therefore, these two documents along with pleadings show that the plaintiffs have prima facie case and the suit schedule properties are joint family properties. When the relationship between the parties is admitted and whether the schedule properties are joint family properties or not is the question to be tried in the trial.

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When the defendants are contending that item Nos.8 and 9 properties are granted in favour of Krishnappa and Channaraya Reddy by virtue of Mysore (Personal & Miscellaneous) Inams Abolition Act, 1954, but it is an admitted fact that plaintiff No.1 is deaf and dumb, therefore, his name could not be found in the application filed for grant of occupancy rights. Therefore, whether such grant is to the entire joint family or exclusively to Krishnappa and Channaraya Reddy is the question to be tried in the suit when fundamentally the suit filed is for partition.

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Considering the fact that defendant No.25 has filed O.S.No.2085/2021 for partition and separate possession and in that suit, the plaintiffs herein who were defendant Nos.25 and 27 respectively have filed the application for transposition under Order XXIII Rule 1-A read with Order I Rule 10 of CPC, but during pendency of the said application the said suit came to be withdrawn.

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Defendant No.25 being the plaintiff in O.S.No.2085/2021 has filed a memo seeking withdrawal of the said suit and the trial Court has permitted to withdraw the suit, but with liberty to defendant No.25 to make agitation in the suit.

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It is not disputed that defendant No.25 is the sister of plaintiff No.1 and father of defendant Nos.1 to 13 and defendant Nos.14 to 24. Therefore, defendant No.25 is also seeking right to claim share in the suit schedule properties. The instant suit is not filed by defendant No.25 in the suit in O.S.No.2085/2021, but she is party in the instant suit and also she has put forth her claim to get share in the suit properties. Therefore, just because, there is a delay in challenging the Joint Development Agreement and considering the inherent right to claim share in the joint family properties, such delay could not defeat the inherent right of the parties to claim partition in the suit schedule properties. Thus, by prayer made in the plaint for seeking declaration of Joint Development Agreement dated 08.08.2013 after lapse of 12 years cannot deprive the

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share of the party in the suit when there is an admitted fact regarding the relationship between the plaintiffs and defendants. This is considered by referring the document of Joint Development Agreement dated 25.10.2007, wherein it is considered that the plaintiffs and defendant No.25 are joint owners along with other defendants. Therefore, just because, in the subsequent Joint Development Agreement dated 08.08.2013 a recital is made that the plaintiffs do not have right, title and interest, but that is not substantiated by any document to exclude the plaintiffs from purview of joint owners in the schedule properties.

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Further the appellants filed the partition deed dated 11.07.2018 pertaining to item Nos.8 and 9 properties, on which, flats were constructed and this is the partition excluding plaintiff No.1 and defendant No.25. Though, the plaintiffs have averred that the suit schedule Item Nos.8 and 9 properties are agricultural lands, but

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they are no more agricultural lands, but converted into commercial properties and apartments were constructed.

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When upon considering the documents as above discussed prima facie the plaintiffs have shown that they are the members of joint family and that the schedule properties are joint family properties. Though, learned counsel for the appellants/defendant Nos.5 & 19 submitted that the plaintiffs have been allotted other properties in schedule ‘A’ and ‘B’ as above stated, but this is not substantiated by any document by the appellants/defendant Nos.5 and 19. When it is the assertion of appellants/defendant Nos.5 and 19 that the plaintiffs have been parted with other properties that could have been substantiated by any prima facie material, but the plaintiffs have not produced any such material.

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Learned counsel for the appellants places reliance on the judgment of the Hon’ble Supreme Court in MANDALI RANGANNA’ s case (stated supra) and has

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mainly focused on the observations made at paragraph Nos.25, 26 and 27, which is read as follows:

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“25. In Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai [(2006) 5 SCC 282] this Court held : (SCC p. 294, para 30) “30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.” [See also Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. [(2006) 1 SCC 540] ]

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26. Rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions.

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27. We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is

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made subject to the ultimate decision of the suit. The trial court is requested to hear out and dispose of the suit as early as possible. If any third-party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All parties must cooperate in the early hearing and disposal of the suit. The respondents must also furnish sufficient security before the learned trial Judge within four weeks from the date which, for the time being, is assessed at rupees one crore.”

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In the above stated case, it was observed

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and ordered that since huge amount is spent for construction, therefore, the work of construction shall not be halted. Therefore, it was ordered that the respondents must furnish sufficient security. Here the plaintiffs are seeking partition of the schedule properties and when the relationship between the parties is not disputed and the plaintiffs either the coparceners or member of the joint family are having inherent right of claiming partition and share and therefore, their interest is also to be safeguarded. There is Joint Development Agreement between other defendants and defendant Nos.26 and 27

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and if the constructed flats are sold out, then the plaintiffs will not get their legitimate share and for that the plaintiffs would have to work out other litigations. Therefore, to safeguard the interest of the plaintiffs, it is necessary to order reserving shares of plaintiffs and defendant No.25 upon the constructed flats, otherwise, if the entire flats are sold out, the plaintiffs would be put into much loss and injury and unnecessarily it would lead to further litigations. Therefore, in the present case, defendant No.5 and 19 are

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not the developers, but they are owners of the property and even if this Court orders to furnish security, obviously, it would be in crores of rupees together, but defendant Nos.5 and 19 are not able to deposit such huge amount as they are not developers. Therefore, in the line of the observation made in the order passed by the Hon’ble Supreme Court, it is appropriate to make order for reserving some flats equivalent to the share of the plaintiffs and defendant No.25. Therefore, hereby it is ordered that the defendants to reserve some flats

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according to the quantifications made by both the parties of shares of plaintiffs and defendant No.25 till the disposal of the suit enabling the plaintiffs and defendant No.25 in case the suit is decreed to get their legitimate share. Therefore, this order is in the line of the observation made by the Hon’ble Supreme Court.

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23. Further the Hon’ble Supreme Court in Vinod

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Seth ’s case has observed at paragraph Nos.41, 42 and 43 as follows:

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“41. Having found that the direction of the High Court is unsustainable, let us next examine whether we can give any relief to the defendants within the four corners of law. The reason for the High Court directing the plaintiff to furnish an undertaking to pay damages in the event of failure of the suit, is that Section 52 of the Transfer of Property Act would apply to the suit property and the pendency of the suit interfered with the defendant's right to enjoy or deal with the property. Section 52 of the TP Act provides that during the pendency in any court of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. The said section

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incorporates the well-known principle of lis pendens which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566 : 44 ER 842] : (ER p. 849)

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“It is, as I think, a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this foundation—that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.”

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42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit.

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43. The principle underlying Section 52 of the TP Act is based on justice and equity. The operation of the bar under Section 52 is however subject to the power of the court to exempt the suit property from the operation of Section 52 subject to such conditions it may impose. That means that the court in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-

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matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a condition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, in spite of the pendency of the suit.”

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The said observations made by the Hon’ble

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Supreme Court are pertaining to Section 52 of the Transfer of Property Act. In this case also whatever alienations are made are subject to Section 52 of the Transfer of Property Act and in this case also, it is observed that while observing so application of Section 52 of the Transfer of Property Act also condition is put to give reasonable security. In the present case, the observations of keeping reserve of the shares of plaintiffs and defendant No.25 is also in line with and in the spirit of the order passed by the Hon’ble Supreme Court instead of ordering to furnish security, and it is ordered to keep reserve the legitimate shares of plaintiffs and defendant No.25.

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25. The Hon’ble Supreme Court in Y.B.Patil ’s case

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has observed at paragraph No.4 as follows:

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”4. In appeal before us Mr Gupte on behalf of the appellants has contended that the High Court was in error in not interfering with the order of the tribunal whereby the revision petition filed by the appellants had been dismissed. It is urged that the tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of Section 79 of the Act dealing with revision. This contention, in our opinion, is not wellfounded. The High Court at the time of the decision of the earlier writ petition on December 18, 1964 recorded a finding and gave directions to the tribunal not to reopen the questions of fact in revision. The tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal was filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner, and the Deputy

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Commissioner. The High Court, in our opinion, was right in holding in the judgment under appeal that the concurrent findings of fact arrived at by the Assistant Commissioner, the Deputy Commissioner and the tribunal cannot be set aside in the writ petition. The appeal consequently fails and is dismissed but in the circumstances with no order as to costs.”

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Having difference in the factual matrix in the

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case of Y.B.Patil and in the present case, the said observations made are not applicable to the present case.

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The Hon’ble Supreme Court in the catena of decisions has observed that where the suit is filed for partition and it is just and necessary to protect the interest of co-sharers, otherwise it would lead to multiplicity of proceedings. Therefore, whatever alienations are made are subject to Section 52 of the Transfer of Property Act and also subject to result in the suit. Therefore, the above said citations are considered in the present case.

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Therefore, considering all these factors as above stated, the trial Court is correct in making the

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opinion that the plaintiffs have made out prima facie case and balance of convenience and if the order of temporary injunction is not granted, then the plaintiffs would suffer loss and irreparable injury. Therefore, I answer point Nos.1 and 2 in negative .

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The decisions relied on by the learned counsel for the appellants are based on the principles governing the law of injunction and they are considered while considering this appeal. If the order of temporary injunction is not granted, then certainly, it would lead to multiplicity of proceedings, and also causing deprivation to the plaintiffs and defendant No.25 for claiming share in the properties. Therefore, the trial Court is correct in observing that, if the order of temporary injunction is not granted, then plaintiffs and defendant No.25 would suffer loss and injury. Hence, I answer point No.3 in negative .

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The suit is for partition and separate possession, therefore, all the parties have rights to claim

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share in the suit schedule properties. Therefore, just because the plaintiffs and defendant No.25 are having their 1/4^th share, then there could not be injunction to the entire extent of schedule properties. Therefore, the order of temporary injunction would be necessary to remain the proportionate share of plaintiffs and defendant No.25 that is for claiming 1/4^th share each and when the other defendants are also having share in the properties, therefore, it is just and necessary to modify the order of the trial Court to protect the rights of plaintiffs and defendant No.25 and hence, it is necessary to reserve 1/4^th share each in respect of plaintiffs and defendant No.25 and for remaining shares, the appellants and other defendants are at liberty to utilize their respective shares. Accordingly, I answer point No.4 partly in affirmative .

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Hence, I proceed to pass the following

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ORDER

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i. The appeal is allowed in part.

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ii. The order dated 17.09.2025 passed on I.A.Nos.1

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and 2 filed under Order XXXIX Rules 1 and 2 of CPC in O.S.No.4625/2025 on the file of XXIV Addl. City Civil and Sessions Judge, Bangalore City (CCH-6), is modified.

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iii. The appellants and defendant Nos.5 and 19 shall reserve 1/4^th share on all the suit schedule properties in the name of plaintiff No.1 and defendant No.25 and the appellants and defendants shall make utilize their other remaining respective shares.

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iv. Therefore, the appellants are directed to furnish the details of apartments constructed over suit item Nos.8 and 9 and assign the portion of 1/4^th share each reserving in favour of the plaintiffs and defendant No.25 and submit to the trial Court and after furnishing the report, then the appellants and other defendants are at liberty to make use of the properties according to their convenience

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